Gay Marriage And The Justices: Day One

"We have five years of information [about same-sex marriage] to weigh against 2000 years of history or more," Kennedy said. "On the other hand, there is an immediate legal injury ... and that's the voice of these children [of same-sex parents].... They want their parents to have full recognition and full status."

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The first of Marriage Equality's two-day series against the Supreme Court was today, and it appears that The Weathervane is once more pondering matters of the heart. This unnerves those of us who remember what happened in 2011, when he set about protecting the wimmenfolk from the awful consequences of being free.

Kennedy acknowledged that there is "no reliable data" on whether abortion affects women's mental health, but he nonetheless found it "unexceptionable" to conclude that some women who have abortions will suffer "severe depression" and other ills-and that they would suffer further if they underwent a "partial-birth" abortion and only later learned about the procedure's gruesome details.

Because we always take Lyle Denniston's dispatches from the Court as though they were written on stone tablets and brought to us personally by Charlton Heston, we also are a bit worried that, when The Weathervane is not pondering naughty bits and their use, he appears to be baffled as to why he's hearing the case at all.

He appeared to be troubled about the Court entering "uncharted waters," on the core issue of who may marry, but at the same time, he also did not look comfortable with any of the other, more limited options. So he openly wondered why the Court had agreed even to hear this case.

I admit it. I admire anyone who makes the argument, "This job is really hard. Why do I have to do it?" However, it's not my marriage that's riding on Kennedy's dither. Everybody else seems to have chosen up sides, at least on today's issues, which dealt with the constitutionality of California's Proposition 8, which banned marriage equality, and which subsequently was tossed by lower courts. There are four votes for it and there are three votes against it, and there is Antonin (Short Time) Scalia, who is really, really, really opposed to it and, besides...STROM THURMOND!

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JUSTICE KAGAN: Well, I just asked about age. I didn't ask about anything else. That's not —we ask about people's age all the time.

MR. COOPER: Your Honor, and even asking about age, you would have to ask if both parties are infertile. Again —

JUSTICE SCALIA: Strom Thurmond was — was not the chairman of the Senate committee when Justice Kagan was confirmed.

What a card.

Anyway, Denniston thinks — and I agree — that the Court will do almost anything to kick this particular can back down the road to the states. (Although the argument that the Court should not rule in favor of marriage equality because there will ensue raging and Bible-banging and poo-flinging drives me straight up the wall. To quote Charlie Skinner from The Newsroom: "I'm too old to live my life in fear of dumb people.") And he thinks there's ample opportunity to do it.

If the Justices, in the initial vote they will take on this case in private later this week, do not find themselves with a majority on any of the issues they canvassed, then they might well be looking for a way out. One way would be to find that the proponents of Proposition 8 did not have a legal right to be in court to defend it, but even that was a hotly disputed issue on the bench. The other way out was directly suggested by Kennedy, and pursued by him in more than a fleeting way: dismiss this case as one that should not have been accepted. A decision like that, though, could take weeks or months to reach. Should that be the outcome, it would be a huge let-down for political, legal, and cultural warriors on both sides of the gay marriage issue, but would have the effect of leaving the issue to be worked out in state legislative halls and at the ballot box, one state at a time, at least for the time being.

But I still think, as I do in all major cases that come before this Court, that a lot is riding in this one on Chief Justice John Roberts's concern for his legacy. Right now, having dispensed with a century of campaign-finance regulations, his Court is going to decide on whether to eviscerate the Voting Rights Act. Let us speculate that the Court adds the VRA to the campaign-finance laws that it already has wiped from the books. Is it now going to hand the equal protection of same-sex couples under the law back to the 50 state legislatures? States can't regulate the buying and selling of their politicians, but they can regulate who gets married to whom? Corporations have free-speech rights, but the people who work in them, and are gay, do not get the equal protection of the law, unless the purchased politicians in question say so? Still, these are not people who miss the lifeboat very often.

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